Commissioner of Social Services v. Michel

— Order unanimously reversed, on the law and facts, without costs, petition granted, and matter remitted to Erie County Family Court, for further proceedings in accordance with the following memorandum: Family Court erred in dismissing the petition in this filiation proceeding without making findings of fact {Augustine v Tandle, 47 AD2d 710; see Matter of Hawthorne v Edward S., 31 AD2d 426, 428); nevertheless there is a sufficient record before us to make our own findings (see Matter of Espin v Pierce, 85 AD2d 503). Petitioner testified that she had sexual intercourse with respondent on a regular basis from May to November of 1977 and that she had not had sexual relations with anyone else during that period. The pregnancy was full term, the child weighing eight pounds, four ounces at its birth on August 4, 1978. Thus the period of conception must have been late October or early November. There is no proof of access by anyone else nor any rebuttal of petitioner’s testimony that she was having sexual relations with respondent during that period. Respondent was present in the courtroom but failed to testify and thus the strongest inference can be drawn against him (see Matter of Bowling v Coney, 91 AD2d 1195; Matter of Commissioner of Social Servs. of Erie County v Simons, 87 AD2d 993; Matter of Jay v Andrew “Y”, 48 AD2d 716). We thus find that respondent’s paternity is established by clear and convincing evidence (see Matter of Commissioner of Social Servs. of Erie County v Simons, supra; Matter of Espin v Pierce, 85 AD2d 503, supra; Ferro v Bersani, 78 AD2d 1010) and remit the matter to Erie County Family Court for a hearing on the issue of support. (Appeal from order of Erie County Family Court, Sedita, J. — paternity.) Present — Hancock, Jr., J. P., Doerr, Denman, Boomer and Schnepp, JJ.